Experts question death penalty in Cleveland kidnap case

Most agree that such charges are possible against Ariel Castro, though not without legal fights starting with constitutional questions over the definition of a murder victim

By Andrew Welsh-Huggins
Associated Pressd

COLUMBUS, Ohio — A prosecutor faces numerous obstacles as he weighs whether to bring death penalty charges against a man accused of kidnapping three women and forcing one of them into miscarriages through starvation and beatings, capital punishment experts say.

Most agree that such charges are possible against Ariel Castro, though not without legal fights starting with constitutional questions over the definition of a murder victim for the purposes of a death penalty case.

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Cuyahoga County prosecutor Tim McGinty said at a news conference on May 9, days after the women were rescued from Castro's run-down home, that capital punishment "must be reserved for those crimes that are truly the worst examples of human conduct."

"The law of Ohio calls for the death penalty for those most depraved criminals, who commit aggravated murder during the course of a kidnapping," he added.

Ohio previously changed its laws to include the unlawful termination of a pregnancy among possible aggravated murder charges, said Doug Berman, an Ohio State University law professor and death penalty expert.

"Ergo, Castro, at least as the facts have been described and developed, would seem to be the poster child for the worst of the worst unlawful pregnancy terminator," Berman said.

Adding other crimes, such as kidnapping or rape, to aggravated murder is how death penalty charges are brought in Ohio.

Castro, 52, is accused of kidnapping the three women when they were in their teens or early 20s and holding them in his Cleveland house for about a decade, chaining them in a basement initially and then allowing them into upstairs bedrooms.

One of the women, Michelle Knight, told investigators Castro beat and starved her to force five miscarriages, according to initial police reports of the women's captivity. Castro also fathered a 6-year-old girl with another captive, Amanda Berry, authorities say; that girl was rescued May 6 along with the three women after Berry busted through a screen door and called police, telling them, "I'm free now."

The Associated Press doesn't usually identify people who say they're victims of sexual assault, but the women's names were widely circulated by their families, friends and law enforcement authorities for years during their disappearances and after they were found.

Castro hid his face during his brief arraignment and didn't speak or enter a plea. Messages were left for Castro's attorney, who has said he'll plead not guilty.

One of the closest precedents to the Castro case is the 2005 Texas prosecution of Gerardo Flores, sentenced to life in prison under the state's fetal protection law after being convicted of stepping on his pregnant girlfriend's stomach and causing the deaths of their unborn twin sons. Flores had argued that his girlfriend wanted an abortion so he hesitantly agreed to press his 175-pound frame on her belly.

In California, Scott Peterson was sentenced to death after being convicted of first-degree murder in the 2002 death of his wife, Laci Peterson, and second-degree murder in the death of her 8-month-old fetus, a boy the couple had planned to name Conner. Peterson insisted he had nothing to do with their deaths.

Ohio enacted a fetal homicide law in 1996, making it illegal to kill or injure a viable fetus. That law and similar laws in the 37 other states with fetal homicide statutes have been used mainly to win convictions in car crashes in which pregnant women died and in cases involving attacks on expectant mothers.

In 2011, a Franklin County man charged under Ohio's fetal homicide law was sentenced to 13 years in prison for taking his pregnant girlfriend to an abortion clinic at gunpoint.

In 2008, a Stark County jury convicted former police officer Bobby Cutts of killing his pregnant lover and their nearly full-term unborn daughter but gave him life in prison instead of a death sentence.

Cutts unsuccessfully appealed the verdict on the grounds that a conviction of murder for the death of his lover was inconsistent with a conviction of aggravated murder for the death of the fetus.

Earlier this month in Pennsylvania, an abortion doctor convicted of killing babies born alive at his clinic avoided a possible death sentence by waiving his right to appeal in exchange for a sentence of life without parole.

Prosecutors argued that Dr. Kermit Gosnell killed the babies after they were born, not as fetuses. Gosnell argued that none of the fetuses was born alive and that any movements they made were posthumous twitching or spasms.

In 2008, the U.S. Supreme Court banned the death penalty for child rapes in which a death didn't occur, spelling out that a killing is the only crime eligible for the death penalty outside of a crime against the state such as treason.

A death penalty case against Castro "would raise serious legal questions about whether a murder has occurred and whether such a death sentence complies" with the court's 2008 ruling, Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, which opposes capital punishment, said in an email.

It's not unheard of for prosecutors to seek capital charges even when a body hasn't been located. But the Castro case brings up another layer of difficulty given that no human remains of any kind have been found on his property.

"How does the prosecution prove a pregnancy? How do you prove that Castro caused the termination of the pregnancy?" said Michael Benza, a Case Western University law professor who has also represented death row clients.

The prosecutor also must factor in the strain of a capital case on the three women, who could face lengthy and intrusive media attention, Benza added.

The nature of the crime makes it likely that, death penalty or not, Castro would face a life sentence if convicted on rape charges alone, said Hofstra University law professor and death penalty expert Eric M. Freedman.

"The odds that it's going to go to a death penalty trial and result in a jury verdict of death," he said, "are vanishingly small."

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